2014 THEME: FIGHTING IMPUNITY

 On June 26^th every year the world marks the International Day in Support of Victims of Torture. Today the world stands in solidarity with victims of torture, to reiterate the fact that torture is a gross and cruel violation of human rights. The day is anchored in the United Nations Convention against Torture (UNCAT) that seeks Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kenya ratified the convention in 1997.

The theme for this year’s campaign is Fighting Impunity.

The Constitution and Legal Framework for Torture in Kenya

Articles 25 and 29   of the Constitution of Kenya provides for the freedom from torture and cruel, inhuman or degrading treatment or punishment as a fundamental right that may not be limited. The UNCAT obligates governments to take effective measures to prevent torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment within their jurisdictions.

Despite its prohibition under both international and national law, torture and related human rights violations are still prevalent in Kenya. Independent surveys by the Independent Medico-legal Unit (National Torture prevalence Survey 2011) and Amnesty International (Torture in 2014:30 Years of Broken Promises) indicate that torture in Kenya is particularly perpetrated by police and prisons officers.

Torture methods ranging from beatings, electric shocks, prolonged isolation, sleep deprivation and denial of medical care are being used by law enforcement officers to expeditiously extract information from suspects as a short cut to the judicial process or as a means of punishment.

Remedies for Torture in Kenya

As such, to effectively combat torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Kenya effective policing and prisons reforms must be implemented. The government must institute legislative and policy reforms to effect both the constitution of Kenya and international treaties that guarantee Kenyans their inalienable rights against torture.

On the occasion of the UN Day in support of Victims of Torture we wish to remind the government that:

• Article 1 of the UNCAT obliges member states to enact legislation that comprehensively defines and makes torture a specific offence; providing for effective right to reparation for victims of torture. Kenya has not enacted such a law. We urge the government to table the Prevention of Torture Bill 2011 in parliament to provide for the specific legal framework for combating torture and related violations.

• The United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR) provides for humane treatment of prisoners and detainees. Monitoring of these minimum standards is critical in combating torture and related human rights violations in places of detention. We urge the government to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) to provide a system of regular monitoring of places where prisoners and detainees are likely to be deprived of their liberty.

• Effective investigations for unnatural deaths in Kenya have hindered access to justice for victims of torture and related human rights violations. The country has never had concrete and adequate laws to address matters relating to investigations of deaths by violent criminal acts, extra-judicial killings, or deaths in the prison or police custody. As such we urge the government to expeditiously table in parliament the National Coroners Service Bill, 2011 that provides for effective investigations and documentation on unnatural deaths.

• Effective documentation of torture and related violations is critical in seeking legal redress for victims. We urge the government to review the “P3” form to ensure compliance with the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2004).The form should also be made available  free of charge in all public hospitals.

• Ever the years victims of torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have lodged successful complaints in courts of law demanding compensation. The passivity of the government in executing or honoring judgments that award compensation to victims of torture has been a significant barrier to the search for justice. The government must put in place a Torture compensation Fund to ensure victims are promptly compensated after a successful judicial process.

A call to avert development induced poverty as is a common consequence of mammoth development projects that displace people and alter their way lives.

During the period between March, 2011 and April, 2014, the Kenya Human Rights Commission (KHRC) set out on a series of fact finding missions to Lamu spanning from . This was spurred by concerns voiced throughout KHRC’s collaboration with various community based organizations in Lamu and had the sole purpose of interrogating the validity of community fears in regard to the proposed Lamu Port South Sudan Ethiopia Transport (LAPSSET) Corridor Project.

Lamu hosts indigenous peoples who have the right to determine and develop priorities and strategies for exercising their right to development. In recognition of the fact that indigenous communities are predisposed to human rights violations; the fact that land rights have historically been a thorny subject even for dominant ethnic groups along Kenya’s Coast; and the fact that Lamu is a UNESCO World Heritage Site on which the Aweer and fisher folk are solely dependent for their livelihood, this Position Paper focuses on the land rights, economic, social and cultural rights of the people resident in Lamu prior to the LAPSSET Project and in particular the indigenous Aweer and fisher folk community. It raises concerns that the manner in which the LAPSSET Project is being administered will relegate host communities further into the periphery of poverty and invisibility and offers recommendations on how to urgently mitigate against this adverse yet imminent outcome.

The KHRC launched the  Forgotten In The Scramble And Petition of Lamu: The Case of the Aweer and the Fisher-folk on the 18^th of June, 2014 at the Manda Island in Lamu.

The findings of this audit raise a red flag that if the LAPSSET Project proceeds in the same manner as it is being currently administered, it is unlikely to result in poverty reduction and improved livelihoods for the people that inhabited Lamu before the Project’s onset.  KHRC intends that the recommendations of this Position Paper will be applied towards ensuring that the LAPSSET Project results in inclusive growth of the Lamu community and sustainable development. To this end, the Position Paper offers recommendations on how various stakeholders may engage towards achieving the state of respect for human rights and environmental justice in implementing colossal development projects.

For these reasons the Position Paper:

1. Recommends that the development of the oil and industrial infrastructure is not executed in a manner that displaces existing and potential livelihoods. On the contrary, it should complement, even boost local capacities for production. It further exhorts government to support host communities towards adapting to new developments without being compelled to abandon old trades. They should, in addition, be enabled to compete effectively in emerging economic activities;
2. Recommends that historical economic marginalization of communities and persons should be addressed within its immediate and appropriate context rather than through blanket “development projects” whose impact might be to aggravate the incidence of marginalization;
3. Argues for the protection and promotion of the rights of indigenous communities in light of pressure to modernize and of their continued vulnerabilities;
4. Argues for a comprehensive Equality and Non-Discrimination policy which also anchors questions of affirmative action, for the benefit of marginalized communities, groups and persons. It, thus, calls for the establishment of equalization models and benefits-sharing standards that seek to rebalance age-old disparities;
5. Tests the principle of “Public Participation” with regard to the Constitutional thresholds of public involvement in government decision-making as part of the broader end of good governance and accountability. It is suggested that a minimum standard for public engagement in questions that directly affect the well-being of communities be established;
6. Echoes calls for a well-managed, yet, timely transition into the newly established land tenure systems and structures of accountability as well as the continued regulation of the system thereafter;
7. Argues for the expansion of grievance redress mechanisms beyond those that are presently utilized by communities, for the resolution of cases of violation of economic, social and cultural rights by State, corporate entities and development partners alike. It suggests viable avenues of grievance redress, beyond the conventional structures of accountability; and
8. Urges the respect for human rights by the State, corporate entities and citizens alike. As such, it suggests the establishment of, among others, protective legal frameworks and the enforcement of law and policies to protect vulnerable persons and communities from the adverse effects of large scale development projects.

Please click here to download the report.

KHRC is here today to present the findings of a series of fact-finding missions carried out between March 2011 and April 2014 with the sole purpose of interrogating the validity of community fears in regards to the proposed Lamu Port South Sudan Ethiopia Transport (LAPSSET) Corridor Project. In this respect KHRC is pleased to present, “Forgotten in the Scramble and Partition of Lamu: The Case of the Aweer and the Fisherfolk.” This Position Paper documents concerns voiced throughout KHRC’s collaboration with various community based organizations based in Lamu.

The LAPSSET Corridor Project will usher in an extensive industrial and infrastructural system that is powered by an emerging local oil economy. The Project aims to, among others, catalyze regional trade between Kenya, South Sudan and Ethiopia, ultimately, a wider reach, as far as Cameroon. Locally, the Project aspires to create jobs and opportunities for business as well as access to social amenities within a region - Northern part of Kenya - which has, historically, been condemned to its own devices. It is illustrative that the arid North remains the hub of long-standing economic marginalization in Kenya.

Under the Economic and Social Rights Programme (ESR) thematic set-up, the KHRC engages with past and contemporary developments relating to the economic, social and cultural rights of communities. The protection of economic, social and cultural rights is integral to sustainable development. The Constitution of Kenya, 2010 provides that protecting and promoting these rights is not solely the obligation of the government; on the contrary, the wider civil society and corporate entities are enjoined in this quest.

While development projects create jobs and open up formerly remote and underpopulated areas, the host communities rarely benefit from these jobs, urbanization and the much needed change. This is because often, members of the host community to majority of development projects in rural Africa cannot immediately qualify for the jobs created, or afford to buy or rent the lovely new houses built or pay for the upgraded education, healthcare, electricity, water and sanitation systems that mega development projects bring. As the new business opportunities created by development projects attract new investors, entrepreneurs and skilled and semi-skilled workers, members of the host community, and particularly indigenous communities have two choices:- i) to engage in the new economy but from a powerless position at the bottom by offering menial, unskilled and semi-skilled labour; or ii) to relocate; be displaced by receding deeper into the periphery to establish a new informal settlements where their now reduced incomes can support a living.

One may argue that those displaced by development projects are almost always paid some compensation to facilitate resettlement and relocate voluntarily, it is important to note that often, the compensation paid or resettlement support given is inadequate to make a fresh start from an empowered position. Consequently, there is need to seriously guard against development projects creating new poverty – greater impoverishment, disempowerment and invisibility; amongst the very host communities that the project was intended to uplift out of poverty. This is what the people of Lamu and particularly the indigenous Aweer fear will and is happening to them.

This resultant position paper raises critical questions on the value, purpose and intended beneficiaries of development projects in Kenya. Whose lives should be positively transformed by the discovery of oil in Kenya or from an investment of the magnitude of the LAPSSET Project? What is the role of the state, international agencies, and the private industrial sector in promoting the interests /human rights of vulnerable populations such as indigenous communities, small scale producers and grossly marginalized host communities, facing the prospect of the introduction of a dominant economic activity?

We welcome you to read the position paper, interrogate it and utilize the lessons learnt towards contributing to a society that respects human rights. The paper is a product of a dedicated team of practitioners and resource persons; too many to enumerate.

The KHRC greatly appreciates the people of Lamu and in particular, the individuals and organisations that make up the Lamu Human Rights Network; with Jafar Omar; Ahmed Famau, Hababa Noor; Hadija Hamid; Muhammed Sadiq; Sharifa Abubakar and Maamun Abubakar warranting specific mention. KHRC also appreciates the invaluable contribution of leaders of the Aweer community, the fisher-folk of Lamu as well as the Lamu Beach Management Unit, Save Lamu, Inuka Kenya Trust and the Secure Project who all must be singled out for gratitude. Your concerns, data gathering and information sharing are the subject of this report. Thank you for trusting the KHRC to articulate these and for your logistical support in validating the same.

The KHRC is also indebted to Andrew Charles Odete for leading the fact-finding mission, information compilation and drafting this  position paper, with the support of Maryanne Mburu, Douglas Odhiambo, Fridah Kaimuri, Herman Omiti, Florence Njoroge, Marie Utetiwabo; Jakline Wanja and Paulina Warinda. Great thanks to George Morara, Esther Waweru, Achieng Orero, Maureen Mugesani, Martin Mavenjina, Fred Njehu, Samwel Oyomo, Martin Pepela and Faith Alubbe for providing invaluable support during the fact-finding missions in Lamu.

For their technical insight, the KHRC is indebted to Commissioner Lawrence Mute, Sara Singh, Steph Booker, Hadija Ernst, Davis Malombe, Sylvia Kithinji, Nduta Kweheria and Andrew Songa as well as to well as the KHRC editorial team comprising of Beth Nduta, Vincent Musebe, Julie Kingsland, Francis Akali, Kathleen Rubia and Beryl Aidi.

To our partners, the Norwegian Government, who made this publication possible by providing the financial support necessary to successfully complete this project, we are singularly grateful.

Lastly, the KHRC appreciates the support of its board of directors and secretariat staff in ensuring the successful implementation of this project.

Atsango Chesoni

Executive Director

Grave human rights violations due to widespread insecurity

The human rights and fundamental freedoms of the people living in Kenya continue to be violated unabatedly. In the past several months Kenya has witnessed what has been called terror attacks in places of business and worship for the very ordinary citizens from the nerve centre of Kenya, Nairobi to our coastal city Mombasa with the most recent attack of yesterday evening in Mpeketoni, Lamu, where 48 people including security personnel were reportedly killed. The violence and insecurity is wide-ranging from the murders in Kitengela that were meticulously planned and executed even before Bungoma could cool off, all the way to the counties of Wajir, Mandera and Garissa where ethnic and clan conflict is rife as well as intensified cattle rustling in Samburu, Baringo, Turkana. These acts of terror target very innocent children; the youthful population, men and women alike.

Ineffective state security response

The KHRC decries the fact that the deteriorating security situation is made worse by the apparent failure of security governance at national and county levels manifested in the collective irresponsible acts of commission and omission. It is intolerable that corruption, unemployment, poverty, ethnic and religious intolerance and inequality in Kenya remain the dominant causes of insecurity as well as factors fuelling insecurity and conflict in many parts of the country.  In the face of these colossal and continually widening crises confronting our Nation, the state governance and political leadership continue to be incapable of rising to the occasion, while the military and security forces along with the intelligence services continue to dither, as if overwhelmed by the challenge.

The KHRC is further deeply concerned that leaders have resorted to the all too familiar reactionary mode of giving instructions and orders without the benefit of insightful and actionable information and intelligence. Such instructions have engendered forms of discrimination and ethnic profiling leading to inhuman treatment of individual such as evident in   “Usalama Watch Operation”; targeted security checks; policy declaration on biometric registration without the requisite legislative support; and government resorting to collecting and counting bodies rather than providing security.

Alienation of communities amid political blame games

It is critical for the state to realize that such actions results in alienation of communities who would otherwise provide useful intelligence information towards preventing attacks. Such actions also result in polarisation of the Kenyan society along ethnic, religious and class lines which thence portend a major security crisis.  KHRC further notes with grave concern the manner in which Parliament continues to abdicate its constitutional responsibility of exercising oversight over security matters affecting the country. The political class continues to engage in an endless blame game geared at furthering their campaigns’ for the next term clearly ignoring the effect of insecurity of the country they so badly decide to have power over.

At such a critical moment, all Kenyans are obligated by the sovereign power they possess to make their voices heard, and call the leadership to order. Notwithstanding the fact that all people must at all times undertake all measures possible to ensure that our country is secure, the Constitution of Kenya confers primary obligation to secure safety and security for all people living in Kenya on the government of Kenya. This responsibility must however be executed within the confines of the rule of law and protection and promotion of all rights of all people and groups.

MOVING FORWARD

The KHRC demands that as a measure of the seriousness of the current situation that all arms of government cease their bickering and superiority contests and as a matter of urgency convene to put in place mechanisms and frameworks to address insecurity. We insist that just this once they prioritise the collective interests of our people over their individual greed.

Specifically we call upon;

1. The executive and relevant organs to fast-track comprehensive reforms of the national security organs in the country; to ensure that immediate steps be are taken towards realizing an improved coordination among security services, agencies and relevant constitutional bodies;
2. The executive and National Assembly to fast-tract the formulation and enactment of a national policy on security which will provide legal backing and clear framework for comprehensive security sector reforms;
3. The KHRC finally calls on all the citizens and non-citizens of Kenya to uphold the sanctity and dignity of human life and as such take responsibility of their individual security as well as promote the security, human rights and dignity of all their fellow human beings;
4. The National Assembly to move with speed to enact the Identification and Registration of Persons Bill to enable the biometric Integrated Population Registration System;
5. Finally, we impress upon the President to set up an all-inclusive and professional taskforce to interrogate the root causes and factors of the increase in  terror attacks, conflicts and insecurity in the country, and publicly present a conclusive report within specified timelines to the executive further policy and legislative actions
6. The National Assembly to give cognisance and legislative and budgetary strength to the now almost redundant National Cohesion and Integration Commission to deal with ethnic and religious tensions.

The Kenya Human Rights Commission (KHRC) is a premier non-governmental human rights and governance institution that was founded in 1991. Our mission is to foster human rights, democratic values, human dignity and social justice, with the mandate of securing human rights states and societies. Its founders and staff are among the foremost leaders and activists in struggles for human rights and democratic reforms in Kenya. KHRC works at community level with human rights networks across Kenya and links community, national and international human rights concerns.

The Kenya Human Rights Commission wishes to express solidarity with the non-governmental organizations in Hungary.

Since its re-election, the Hungarian government launched a campaign attacking the credibility of Hungarian NGOs and are striving to gain controlling power over their funding distributed independently from the government. We believe that a dynamic and independent civil society plays a fundamental role in a democratic society, as it is one of the key checks and balances to governing power. As demonstrated by Putin’s Russia, the harassment of the civil sector could easily lead to the criminalization of NGOs and could effectively hinder their work. We stand in solidarity with the Hungarian NGOs and call on the Hungarian and all other governments to refrain from harassing civil society!

Background:

After the widespread criticism due to the elimination of independent institutions, the dismantling of the framework of parliamentarianism, the opening of the second term of the Orban’s government in 2014 has seen even more challenges: new impetus was given to questioning the credibility and hindering the independent financing of autonomous civil organizations representing a counterbalance to the government.

The Norway Financial Mechanism (Norway Grants) is part of an agreement between the EU and Norway, Iceland and Lichtenstein about funding projects in less-developed European economies. The Hungarian government launched its attack against the Norwegian Civic Fund (NCTA) at the beginning of April, only a day after its massive re-election victory. The NCTA is a small portion of the Norway Grants, which is distributed by a consortium of four Hungarian foundations, which have previously administered the grants with great success. The accusation is that through the four foundations, Norway is trying to influence Hungarian politics. Norway firmly denied the accusations.

When the Norwegian government rejected the charges, the Hungarian government sent agents of the Government Control Office (KEHI) to audit the Fund's administering organizations. The government has led an escalating campaign accusing the four NGOs of political meddling that helped Norway disburse the grants. It said KEHI would audit Okotars, the consortium leader NGO, but sent KEHI agents to two other partner organizations as well. The foundations were threatened with the suspension of their tax number if refused cooperation. The legal basis of the audit is disputed by the administering organizations of the consortium.

In the past years, NGOs, especially those critical of or countering the ideology of the government (LGBT+ rights groups) were subjected to defamatory attempts. On May 30, 2014, an article was published stating that the government blacklisted independent Hungarian civil organizations that have benefitted from the Norwegian Civic Fund (NCTA) on the basis of their alleged political affiliation. In an emailed statement to Reuters on this day, the government said it had no intention of fighting individual NGOs, but it repeated the charges that the grants sought to exert political influence.

Civil organizations' opportunities for legal advocacy and the room to maneuver are becoming smaller, and media publications may be henceforward constrained to exercise self-censorship because regulations of the media law curtailing the freedom of speech and judicial practices would hold them back from publishing articles criticizing the government. All these steps make Hungary resemble Putin's Russia, where, with the silencing of the last free voices, all the defenses of the democratic state are being demolished.

According to Atlatszo.hu – one of the blacklisted NGOs: the scandal sparked by the Hungarian government over the Norwegian funding of local NGOs has escalated to the extent that groups advocating environmental concerns and anti-corruption are being targeted by the authorities. The only tangible reason to be found is that the Hungarian government doesn’t approve of funding being distributed to organizations, which they do not approve of.

As things stand, the organizations that are receiving or have received a grant are prone to face investigations from the authorities, with the declared intent to decide whether they were legitimate recipients of the Norwegian tax-payers’ money, or whether they were handpicked to represent niche political interests that go against the will of the Hungarian majority.

According to the Hungarian Civil Liberties Union, another blacklisted NGO: These are steps in a series of government actions aiming to silence people, from ordinary citizens to the press to civil society, and prevent them from voicing any criticism against the government. An examination of government actions since 2010 shows that the elimination of independent institutions, the dismantling of the frameworks of parliamentarianism and the trivialization of opposition voices already started during the previous government cycle. Such measures include the Media Law, the curtailing of the Constitutional Court's authority, the elimination of the institution of the independent Data Protection Ombudsman, the transformation of the election system and the means of approval and contents of the Fundamental Law.

As part of the government’s silencing efforts of independent voices, the editor-in-chief of one of the largest Hungarian online news sites, Origo.hu, was forced unexpectedly to leave his job on June 2. On the last week of May, the news site published a series on János Lázár, Secretary of State for the Prime Minister's Office, noting that his recent spending of 6.500 EUR from public funds on travel expenses was presumably unjustified. In response, János Lázár exercised visible pressure. It is probably due to this incident that the editor-in-chief of Origo.hu, who was said to have resisted the political pressure exercised by the publishing company, was forced to quit yesterday. The editorial board of Origo.hu expressed its disagreement with dismissing the editor-in-chief and considers the conditions for continuing its work insecure. Since June 2, a number of staff members quit their jobs. The management of Origo.hu denied the accusations about political pressure.

Recommended articles, statements:

http://www.liberties.eu/en/news/putins-methods-against-criticism

http://norvegcivilalap.hu/en/government_attacks_hungarian_NGOs

http://english.atlatszo.hu/2014/06/03/hungarian-govt-targets-ngos-atlatszo-hu-is-also-under-assault/

http://www.transparency.org/news/pressrelease/transparency_international_calls_for_an_immediate_end_to_intimidation_

http://www.reuters.com/article/2014/06/02/us-hungary-norway-funding-ngo-idUSKBN0ED1QW20140602?feedType=RSS&irpc=932

http://www.hrw.org/news/2014/06/05/dispatches-harassing-civil-society-hungary

About the constitutional de-constructing:

http://tasz.hu/en/news/hclu-hungarian-example

Since the passing of the Kenya Constitution 2010, the country has experienced numerous challenges in its implementation and meaningful interpretation. This has caused constitutional crisis, conflicts between the different arms of Government and disillusionment among citizens of the perceived gains in the Constitution.

It is against this backdrop that this conference has been organized to assist the legal community, legislators, judges, civil society, journalists, academics, members of the business community and civil servants to reflect on this subject matter.

The Conference will be officially opened by the Honourable Chief Justice of Kenya, Willy Mutunga on 9^th June at 8.30am and will involve presentations on interpretation by judges and academics from overseas and East Africa.

The conference will illuminate experiences from different jurisdictions in shaping the development of and interpretation of transformative constitutions. A transformative constitution is generally understood as one that seeks to make a break with the previous governance system. It aims not only to change the purposes and structures of the State, but also society. It is value laden, going beyond the State, with emphasis on social and sometimes economic change, stipulation of principles which guide the exercise of state power, requiring State organs, particularly the judiciary, to use the constitution as a framework for policies and acts for broader shaping of state and society. They require positive initiatives and legislation by the state, and in cases of failure, courts may instruct them to do so and perhaps elaborate what needs to be done.  There is considerable emphasis on the rule of law, defined not in any technical sense, but signifying a new kind of constitutionalism.

______________________________________________

Editors’ note:

The will be a chance for interviews with the presenters after their presentations.

For an interview or more information please contact Sofia Rajab on SRajab@khrc.or.ke or +254-20 2044545; +254-20 2106709.

The KHRC is an independent non-governmental organisation (NGO) founded in 1991 and registered in Kenya in 1994. Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya. We envision human rights states and societies and outline our mission as to foster human rights, democratic values, human dignity and social justice.

The Mau Mau Memorial entails a monument structure and two statues of the Mau Mau and is to promote reconciliation and commemorate all those who suffered on all sides during the Emergency period. Click here for more images of the memorial.

The establishment of the memorial is a part of the settlement reached between the Mau Mau War Veterans Association (MMWVA) and the British Government announced in June 2013.The memorial constitutes a lasting expression of reconciliation.

In June 2013, the British Government made a historic statement of regret over the atrocities that that were perpetrated by the colonial government during Kenya’s Emergency period of 1952-1960. This was part of the out of court negotiations settlement wherein each of the 5,228 claimants identified as having suffered acts of torture was to be paid an ex-gratia payment of British Pounds 2,650 being Kshs. 340,000/-.  In addition, the settlement also included the construction of a memorial in Kenya in memory of Kenyan victims of the colonial era torture.

In 2003, the Kenya Human Rights Commission (KHRC)was approached by the MMWVA to support victims of the colonial era torture which took place during Kenya’s Emergency period of 1952-1960. The Mau Mau War Veterans Association opted to bring individual test cases of torture against the British Government on June 23rd 2009 with five elderly Kenyans, namely Ndiku Mutua, Wambugu Nyingi, Jane Muthoni Mara, Paulo Nzili and Susan Ciong’ombe Ngondi being the lead claimants in NDIKU MUTUA AND FOUR OTHERS – V- COMMONWEALTH OFFICE HQ09X02666.

Out of the 5228 ex-gratia payments, only 87 cases of deceased clients are pending as their various next of kin are following up on succession matters.

To execute the last part of the settlement; the Mau Mau Memorial Steering Committee held a MauMau monument design competition. We got at least five entries from interested designers. The Steering Committee comprises the KHRC, MMWVA, the British High Commission, the Ministry of Sports, Culture and Arts (through the National Museum) and the Nairobi County Governor’s office.

Experts from the Board of Registration of Architects and Quantity surveyors (BORAQS) offered technical expertise towards analysing the feasibility of all the entries in terms of cost and durability.

The winning bid has been submitted to the Nairobi County for approval before construction.

The Nairobi County have offered a construction site at the freedom corner and will further meet some costs towards construction of path ways leading to the monument.

The ground breaking ceremony will be held in June before the construction begins. The MauMau war Veterans will converge there to acknowledge the memorial.

The unveiling of the monument will be done in October during Mashujaa day

What was Kenya like in 1991? Kenneth Matiba, Charles Rubia and RailaOdinga were in prison, detained without trial. Several other leading Kenyans were in exile. It was only three years after Kanu, then the only legal political party, had held nominations for Parliament using the infamous queue voting system.

1. Five of the Kenyans in exile – Prof Makau Mutua, Mr Maina Kiai, Dr Willy Mutunga, Hon Kiraitu Murungi and Prof Peter Kareithi – formed the Kenya Human Rights Commission and registered it in Washington DC in 1991.
2. One of the founders was despatched to Kenya to operate from the offices of Kuria, Ringera and Murungi Advocates. The KHRC was later hosted by the Kituo cha Sheria before moving to South B Estate, and to its current location on Gitanga Road in Valley Arcade.
3. Between 1992 and 1997, the KHRC focused on monitoring, documenting and publicizing human rights violations. It applied a direct attack on political despotism. Through direct action protests and support to victims and survivors of violations, the organisation established itself as an advocate for civil and political rights in Kenya, by linking human rights struggles with the need for reforms in political leadership and institutions.
4. From 1998 to 2003, KHRC expanded its advocacy strategy to include social and economic rights in order to attack economic despotism. We made a radical shift in approach that led us to begin developing capabilities of those affected by human rights problems to advocate for their rights. It invested in community based Human Rights Education (HRE) and shifted its advocacy approach from ‘reactive, one-off’ activism to more nuanced processes, participation of those affected by specific human rights violations and targeted reforms at policy and legislative levels.
5. It developed its first Strategic Plan for the period 1999-2003 whose thrust was to develop competencies at community level for citizens to identify and deal with human rights violations, without depending on the previous interventionist orientation.
6. The 2003-2007 Strategic Plan focused on strategies and actions aimed at enhancing community-driven human rights advocacy by building the capacities of citizens to deal with their immediate human rights concerns as well as engage in strategic actions to transform structures responsible for human rights violations. During this phase, it focused on rights related to trade, business, investment, natural resources, labour and sexual and reproductive health.
7. In 2008-2012, KHRC expanded the impact of its work to play an active role in procuring citizen-led reforms towards a more just, democratic and human rights-respecting Kenyan society. With the Constitution of Kenya, 2010,KHRC sees a normative framework for the kind of society it wishes to see, but recognised that it is facing a serious threat of being sabotaged because of the ascension to power of those opposed to it.
8. A majority of the first commissioners at the Kenya National Commission on Human Rights were from KHRC. The Truth, Justice and Reconciliation Commission (TJRC), established in the wake of the post-election violence of 2008,was a brainchild of KHRC. Chief Justice Willy Mutunga is a founder and former director of KHRC. The UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, Mr Maina Kiai, is the KHRC founder director and now member of the board; while the current UN Special Rapporteur on Xenophobia, Dr Mutuma Ruteere, also worked at the KHRC.

This latest strategic plan comes at a time of transition in Kenya.  The promulgation of a new Constitution of Kenya in August 2010 ushered in a devolved governance structure, a bicameral parliament, the establishment of several constitutional commissions and institutional changes.

There is also a new political order following the March 2013 general election, the first elections held under the new constitution. The elections resulted in the ascension to power of Uhuru Kenyatta and William Ruto, both of whom are facing charges of crimes against humanity at the International Criminal Court in The Hague. New electoral seats were also created by the constitution: governors and County Representatives (for County Governments), women’s representatives in the National Assembly and senators in the Senate.

The birth of a new constitution, Constitution of Kenya (2010) one of the hallmarks of which is a strong Bill of Rights, is but one of the many democratic gains that the KHRC has contributed to in the last two decades.

KHRC has triumphed in two significant historical injustices cases:

• • KHRC identified Nyayo House torture victims, created a network for them and facilitated litigation leading to their compensation and obtained a court order to preserve Nyayo House chambers as part of national memory.
  • And In June, 2013, through its work in partnership with the MAU MAU War Veterans’ Association, the British Government made a statement of regret for the torture suffered during the independence struggle in Kenya; entered into a settlement for over 5,000 victims of torture; and setting up a memorial in honour of victims of torture.

Also in 2013 the KHRC won a case requiring the Kenyan Government to consult with citizens and small scale farmers’ organisations in negotiating economic partnership agreements (EPAs) with the EU and other stake holders.

Land and Human Rights Advocacy Organizations’ Open Letter to the Government of Kenya and Other State Actors on Land, Environment and Natural Resources

His Excellency Honorable Uhuru Kenyatta,

The President of Kenya;

Honorable Prof Judy Wakhungu,

Ministry of Environment, Water and Natural Resources;

Honorable Githu Muigai,

The Attorney General;

Honorable Amina Abdalla,

Chair, Environment and Natural Resources Committee

Honorable Alex Mwiru,

Chair, Departmental Lands Committee.

THE TRUTH ABOUT EMBOBUT FOREST EVICTIONS AND A WAY FORWARD

We Land and Human Rights Advocacy Organizations would like to state that the recent evictions at the Embobut Forest are not only a grave violation of the Kenyan Constitution but also defiance of international law on human rights and an ineffective approach to biodiversity conservation.

Don’t be misled

We are told that “squatters” have been moved out of the Embobut Forest, and that this means one of Kenya’s water towers has been salvaged. What official sources, and many media accounts, fail to point out is that some of those being evicted are being chased out of their ancestral lands.

Although their plight found space in the Constitution because these communities have suffered long enough, regrettably no one is telling Kenyans that the best way to protect that water tower would be to leave the indigenous inhabitants of Embobut in their forest home, the place that they have protected for centuries; and they can do so even better if given the chance. This means making it legal for them to continue living on their ancestral lands that are now within a Reserve, on condition they conserve the forest, for all of us Kenyans.

1.  Who lives in the Embobut Forest?

• The Sengwer

The Sengwer is an indigenous and marginalised ethnic group of hunter-gatherers. They have lived in the Cherangany Hills for centuries, and Embobut forest is their ancestral and communal land.

• "Resettled" Landslide victims

These people are there because of the landslides in 1961 and 2010 in the Cherangany Hills, which resulted in loss of life and displacement of people. They have been living in the forest while awaiting resettlement in a proposed second phase.

•  Other "in-comers"

Other people have moved in, viewing the forest as “free land”, clearing the forest to create land for farming and also cut down the trees for commercial purposes.

2.  What are the Real Issues  

• Conservation Concerns

The Government claims it is evicting people from the Embobut Forest in order to protect the forest’s biodiversity. But the best way to protect the forest is to allow those who have been its guardians for centuries to continue to do so. And this approach is recognised internationally as the most effective.

• Human Rights Issues

Gross violations of human rights have been committed against the forest evictees by the Government of Kenya. We have seen the films and photographs of the homes Kenya Forest Service has burnt, forcing thousands of Sengwer families to flee. We can all imagine how traumatising it can be to have homes and belongings, school uniforms and beddings burnt, schooling disrupted, food sources destroyed, and communities broken. Specifically the rights violated include:

• The rights to food and to housing, and almost certainly to health: these are protected by Article 43 of the Constitution, and are violated by removing people from the forest on which they have relied for their daily existence 
• The rights of the children: the right to education, and the right to shelter, and to freedom from violence have all been violated 
• The right to practice culture: especially for the Sengwer, the forest is their life as well as their livelihood, it contains their shrines, and it is integral to their community life, and they have been deprived of this 
• Rights to ancestral land: Article 63 (d) of the Kenyan Constitution recognizes the rights of communities to own ancestral lands traditionally occupied by hunter-gatherers. 
• Right to property: destruction of houses and their contents obviously violate this right (Article 40) 
• Right to personal security: everyone has the right to be free from violence from any source (Article 29), clearly violated by the manner of the evictions 
• Right to dignity: Dignity is at the root of rights, and it has not been respected (Article 28) 
• Right not to be evicted in violation of international standards: the Kenyan courts have recognised this right, and even if there is good reason to evict anyone, certain standards must be respected – and they have been violated.
• Compensation

The much hyped compensation of Kshs 400,000 to each family in return for them to vacate the forest is misleading. Many people did not get this, many did not understand or agree to the supposed arrangement. In the spirit of transparency, the Government should publish the list of all the beneficiaries so.

For the Sengwer, compensation and resettlement is not the issue at all; they should be left live in and protect their ancestral home. They are willing to be bound to use those home areas as conservators of the resources that are so precious to their livelihoods and to abide by conditions laid down by KFS.

3.  Defiance of the rule of law

• The forceful evictions carried out by the police in the Embobut Forest are not only a violation of constitutionally guaranteed rights but are also a direct violation of stay orders issues by Eldoret High Court.
• Disregard for constitutional values violates the rule of law. And turning a blind eye to a court order is equally a violation. If Kenya Forestry Services, police and officials can decide that they can disregard the law, including an order of the court, the law and the Constitution, then the hopes of Kenyans that rest on this foundation become meaningless.
• Dispossession of the Sengwer people and indeed of the many other indigenous forest communities in Kenya - including the Ogiek, Yaaku, Aweer and Sanye – is a historical land injustice that started with the colonial administration, and has been perpetuated by subsequent independent governments. It is ironic that while the constitutionally mandated National Land Commission prepares its programme to deal with existing historical land injustices, the Government is perpetrating fresh injustices in dispossessing people of their ancestral community land.

4.  Why the underlying policy is mis-guided

There are best practices all over the world that the Government could replicate. Over 50 countries have been faced with the same issue: from the Amazonian to the Congo Basins, from the Indian sub-continent to South East Asia. More and more states are finding the way forward – not by abandoning forest conservation needs in favour of forest dwelling communities’ land rights, or vice versa, but by integrating the two in a practical approach that allows forest communities to stay in their forest, on condition that they take on full responsibility for protecting and conserving the forest resources. They cannot dispose of those lands, and if they fail to sustain their forests they lose those rights. Conservation science now tells us that when forest dwelling communities have secure rights to their lands, they are six times more effective than state agencies at protecting their forests.

Even in Kenya the Ogiek of Chepkitale, Mount Elgon are showing the Kenya Forest Service and Kenya Wildlife Services that, given the chance, they can manage those threatened resources themselves with support from these services. They have their own community by-laws to ensure protection and sustainable use of these areas, which they regard as their (ancient) community lands; and the Sengwer had begun the same process before the evictions took place.

5.   Mapping the Future

The way ahead is not mysterious. It involves respect for rights, and effective forest conservation. The laws, the mechanisms and the knowledge are all there.

• The National Land Commission is the body, created by the Constitution that should take charge of this situation, and work, with others towards a sustainable solution for Embobut and other forests.
• Technical assistance should be offered to the 8 indigenous forest dwelling communities whose lands have been reclassified into 17 state-owned Protected Areas who are working to find a way out of the conventional conservation-rights impasse.
• Enactment of the Community Land Bill would cure some of the problems. There is real concern that powerful players may be seeking to evict these forest dwelling communities from their ancestral lands before this Bill becomes law.
• And it is the obligation of the National Land Commission to ensure that any evictions that are necessary (and the major point made here is that eviction of the Sengwer is not only unnecessary but will work against forest protection), must be done in accordance with the Constitution, and indeed s. 155 of the Land Act.

Finally: We believe that the government can win. And the people can win. Even if the new government means well, it they will do well in changing times to listen closely to their people, in this case to those who are being affected and those who have solutions well worth listening to. It is clear that recognising ancestral communities’ rights to their ancestral forest lands can give such communities the security to be able to protect their forests from encroachment by those who do not want to protect the forest.

Signed: